Contributions: Employee vs. Employer
401(k) plans often include both employee deferrals and matching or profit-sharing contributions from the employer. Only vested portions of employer contributions are typically subject to division in a QDRO.
- Employee Contributions: These are fully vested and often easiest to allocate.
- Employer Contributions: These may be subject to a vesting schedule—any non-vested amounts can’t be assigned to the alternate payee.
When drafting the QDRO, make sure to clarify whether the division includes employer contributions and whether unvested amounts at the time of divorce are included or excluded.

