Step 1: Determine What’s Divisible
Only the marital portion of the 401(k) is subject to division in most states. That means the QDRO must calculate what part of the account was earned during the marriage. Contributions made before or after the marriage are generally considered separate property.
Important components to assess include:
- Employee Contributions: These are usually 100% vested and fully divisible.
- Employer Contributions: May be subject to a vesting schedule and not entirely available to the alternate payee.
- Loan Balances: If the participant has an outstanding 401(k) loan, the QDRO must clearly indicate how that loan will affect the division.
- Traditional vs. Roth Accounts: The plan may include both account types, each with different tax implications. The QDRO must treat them separately.

