1. Employee vs. Employer Contributions
401(k) plans typically include both employee (participant’s own) contributions and employer contributions. During divorce, a QDRO can assign a portion of:
- The total balance (including gains and losses)
- Only the marital portion (e.g., contributions made and vested during the marriage)
- Just the employee’s contributions or employer contributions, depending on how the divorce settlement is written
It’s important to note whether the employer contributions are fully vested or subject to a vesting schedule. If they’re not vested, some of those funds may be forfeited later—and won’t be available to divide.

