Employee and Employer Contribution Division
In most divorce settlements involving 401(k)s, the QDRO will specify what portion of the account balance the non-employee spouse (alternate payee) will receive. That could be a percentage of the account as of a particular date (often the date of divorce) or a flat dollar amount.
- Employee contributions: These are 100% owned by the participant and usually available for division.
- Employer contributions: These may be subject to vesting, and unvested portions may not be available to divide.
Be clear in your QDRO about whether you want to include only vested employer contributions or request that all current balances be tracked and adjusted accordingly.

