1. Employee vs. Employer Contributions
401(k) plans typically have both employee (salary deferral) and employer (matching or discretionary) contributions. These need to be handled differently in a QDRO:
- Employee Contributions: These are always 100% vested and divisible.
- Employer Contributions: These may be subject to a vesting schedule. If the employee isn’t fully vested, some amounts could be lost unless the QDRO clearly protects them.
Best practice: Include language in the QDRO that calls for division of vested and unvested portions as of a specific date, or clarify that only vested funds will be awarded.

