Employee and Employer Contributions
This 401(k) plan likely includes both employee salary deferrals and employer profit-sharing contributions. A QDRO can divide employee contributions dollar-for-dollar. However, employer contributions may be subject to a vesting schedule, meaning unvested portions could be forfeited upon employment termination.
When drafting the QDRO, it’s essential to determine:
- What portion of the balance is employer vs. employee contributions
- Which contributions are vested as of the date of divorce or distribution
- Whether the alternate payee is entitled to gains/losses on those contributions

