Employee and Employer Contributions
This 401(k) plan likely includes both employee deferrals and employer profit-sharing contributions. A common issue we see is failing to separate these distinct contribution types in the QDRO. Some employer contributions may be subject to a vesting schedule, meaning they aren’t fully owned by the employee until certain service conditions are met. This matters when determining which part of the account is divisible.
The QDRO should clearly state whether the alternate payee is entitled to:
- A flat dollar amount
- A percentage of the account as of a specific date
- Only the vested portion of the account
Failing to specify vesting can result in either too little or too much being assigned to the alternate payee.

