1. Dividing Employee and Employer Contributions
401(k) balances typically include both employee contributions and employer matches or profit-sharing contributions. In divorce, the total marital-value balance should usually include both—but only what was earned during the marriage.
The QDRO should specify whether the alternate payee will receive a percentage or dollar amount of:
- Just employee contributions
- Employee + vested employer contributions
Unvested employer contributions generally cannot be transferred. However, if the participant later becomes vested post-divorce, a poorly written QDRO could unintentionally include those funds or exclude rightful shares. Don’t guess—get this in writing correctly the first time.

