Dividing Employee and Employer Contributions
One of the first things we look at when dividing a 401(k) plan in a divorce is which types of contributions are included. The Brand Activate LLC 401(k) Profit Sharing Plan & Trust likely features:
- Employee elective deferrals (percentage of salary)
- Employer contributions (match or profit-sharing)
These are treated differently in a QDRO. Unlike pension plans, everything in a 401(k) is account-based. Contributions made before the marriage may be considered separate property, while those made during the marriage are usually marital assets. A well-written QDRO ensures only the marital portion is divided, using either a specific amount or a pro-rata sharing formula.

