1. Employee vs. Employer Contributions
401(k) plans typically involve both employee deferrals and employer matches or profit-sharing. Many divorcing spouses divide the plan “as of” a certain date, meaning any amount saved—and vested—up to that point gets divided.
- Only vested employer contributions can be divided by a QDRO. If the participant is not fully vested, the alternate payee may not receive those funds.
- A good QDRO will make clear whether the division applies only to the employee’s contributions, employer contributions, or both.

