Employee Contributions vs. Employer Contributions
401(k) plans usually include two main contribution types—those made by the employee and those made by the employer. The QDRO must define how each is being divided.
- Employee contributions (and their earnings) are always marital property if made during the marriage.
- Employer match contributions may or may not be fully vested—and if they’re not, they may be partially or fully forfeited.
When drafting a QDRO, we clarify whether the division is based only on marital contributions, or the entire balance. We also address any unvested employer contributions separately, so the alternate payee doesn’t assume they have rights to funds that aren’t available.

