Employee and Employer Contributions
This 401(k) plan will likely include both employee deferrals (what the participant chooses to contribute) and employer-matching or profit-share contributions (paid by the employer). Only contributions made during the marriage are typically considered marital assets—but employer contributions often come with a vesting schedule. That means even though funds were deposited, some of them may not belong to the participant—or to the spouse—in a divorce.
A well-crafted QDRO will deal with both types of contributions by:
- Specifying amounts or percentages for division of pre-tax and/or Roth contributions
- Addressing vested vs. non-vested employer funds
- Clarifying the cutoff date—either the date of separation, divorce filing, or divorce finalization

