Employee vs. Employer Contributions
This 401(k) plan includes both employee and (likely) discretionary employer contributions. The QDRO must specify whether the alternate payee (usually the former spouse) is receiving a percentage or flat amount of:
- The total account (including both employee and employer contributions)
- Only the employee contributions
- Only the vested portion of the employer contributions
If the plan participant isn’t 100% vested in employer contributions, the QDRO can only award the portion that’s vested as of a specific date, usually the divorce or valuation date. Be clear in the QDRO which of these dates you want used—judges and plan administrators won’t guess.

