Dividing Employee and Employer Contributions
Most likely, this 401(k) plan includes both employee contributions (money deducted from the participant’s paycheck) and employer contributions (often matching or discretionary). During divorce, a QDRO can divide both—but here’s the catch:
- Only vested employer contributions can be divided.
- Unvested funds will typically revert to the plan or the participant, not the alternate payee.
A properly prepared QDRO will identify which percentage or dollar amount of the account is to be awarded to the non-employee spouse, known as the “Alternate Payee.” It must also specify whether the division includes gains and losses through the date of distribution.

