1. Division of Employee and Employer Contributions
This 401(k) plan likely includes both employee (participant) contributions and employer profit-sharing contributions. In divorce, the QDRO should clearly state how both types are divided. This is important because:
- Employee contributions are always 100% vested and available for division.
- Employer contributions may be subject to a vesting schedule. Only the vested portion can be awarded to an alternate payee.
Care should be taken to define whether the division is based on a percentage, fixed dollar amount, or as of a certain valuation date (such as the date of separation or divorce filing).

