1. Division of Contributions: Employee vs. Employer
401(k) plans typically include both employee deferrals and employer contributions. It’s critical to determine how each type of contribution will be divided.
- Employee contributions: These are always considered the participant’s property and part of the divisible marital estate in most states.
- Employer contributions: These may be subject to vesting schedules. Any unvested employer contributions may be forfeited if the employee hasn’t met certain service or employment requirements.
When preparing a QDRO, you must clarify whether only vested amounts should be divided or if the alternate payee will receive a share of future vesting. Most plans only allow division of currently vested funds.

