1. Employee and Employer Contributions
Most 401(k) plans include both employee contributions (which belong fully to the participant) and employer contributions (which may be subject to a vesting schedule). In a divorce scenario, it’s important the QDRO states whether only vested employer contributions are being divided or if unvested amounts will be accounted for once vested.
A well-drafted QDRO should address:
- What percentage or amount each party receives
- Whether employer-matching funds are included
- Cut-off dates for determining marital versus non-marital contributions

