Division of Employee and Employer Contributions
Since this is a 401(k) plan, the account may include both employee and employer contributions. The QDRO must clearly state whether the alternate payee (the non-employee spouse) will receive:
- A percentage or set dollar amount of the total account balance as of a specific date
- Only employee contributions, or both employee and vested employer contributions
Remember—employer contributions may be subject to a vesting schedule. Unvested amounts are not transferable under a QDRO unless they become vested later. A well-drafted QDRO accounts for this, typically stating that the alternate payee will receive a proportionate share of any future vesting gains.

