Employee vs. Employer Contributions
One of the first decisions in a QDRO for a 401(k) plan is whether the alternate payee will receive a share of both employee and employer contributions. Most QDROs divide only the “marital” portion of the employee’s account — usually based on contributions made during the marriage.
- Employee contributions: These are always considered divisible if made during the marriage.
- Employer contributions: These may or may not be divisible, depending on vesting. Unvested funds might never be paid out to the employee — and therefore might not be available for division either.

