Employee vs. Employer Contributions
Most 401(k) plans include both employee deferrals and employer contributions. The QDRO needs to clarify if the division includes:
- Just the employee’s contributions and earnings during the marriage, or
- Both employee and employer contributions (including matching),
Additionally, employer contributions may be subject to a vesting schedule. That means some of the funds may not legally belong to the employee at the date of division. Any unvested employer contributions cannot be assigned to an alternate payee in the QDRO.

