1. Employee vs. Employer Contributions
In most 401(k) plans, the participant contributes a portion of their wages, and the employer may match or contribute additional funds. A solid QDRO must address both:
- Employee contributions are marital property if made during the marriage, and are typically divisible.
- Employer contributions may be subject to vesting. The alternate payee is only entitled to the vested portion made during the marriage, unless the parties agree otherwise.
Make sure your QDRO specifies whether the alternate payee is entitled to a share of all vested balances as of the “marital cutoff date” or only to contributions during the marriage. This choice dramatically affects the payout amount.

