1. Employee and Employer Contributions
This 401(k) plan likely includes both employee deferrals and employer profit-sharing contributions. When drafting a QDRO, it’s important to be clear about which contributions are being divided. Common options include:
- A fixed percentage of the entire account balance (including both employee and employer funds)
- Only a portion of the balance earned during the marriage period
- Excluding employer contributions that were not vested at the time of divorce
Each of these choices has pros and cons. If the divorce decree doesn’t specify, the QDRO must make that decision. Our experience shows that vague orders often lead to delay and disputes—both of which we work hard to avoid.

