Employee and Employer Contributions
Most 401(k) plans include both employee salary deferrals and employer matching or profit-sharing contributions. In your QDRO, it’s important to specify whether the award includes just the employee’s contributions, or both employee and employer contributions. If employer contributions haven’t vested yet, they may not be available for division, or may require future adjustment.
We often draft QDROs to expressly include “any and all vested and nonvested employer contributions,” with caveats about forfeited unvested amounts. This helps the Alternate Payee potentially claim future vesting if the plan allows for that.

