Employee and Employer Contributions
401(k) accounts typically include both employee contributions (salary deferrals) and employer contributions (such as matching). It’s vital to specify in the QDRO how these should be divided. For example:
- Should only pre-marital contributions be excluded?
- Do you intend to divide just the vested portion or the full account?
- Should gains and losses from the date of division be included?
Generally, employer contributions are subject to a vesting schedule. If part of the account is unvested, it could be forfeited later if the employee leaves the company. This needs clear drafting in the QDRO to avoid future disputes or misunderstandings.

