Employee vs. Employer Contributions
Most 401(k) plans consist of:
- Employee elective deferrals (voluntary contributions)
- Employer matching or non-elective contributions
The QDRO will need to state whether it divides only employee contributions or includes employer contributions as well. In many divorces, the account balance as of the “marital cutoff date” is divided equally, including all vested contributions. However, employer contributions may not be fully available due to vesting schedules, which must be clearly understood before drafting the order.

