Employee and Employer Contributions
The first thing you need to establish is what part of the 401(k) account is considered marital property. Usually, contributions made during the marriage by either party are marital. However, employer contributions may not fully belong to the participant unless they are 100% vested.
Be sure your QDRO handles the following:
- Divides only vested employer contributions unless otherwise agreed
- Includes employee salary deferrals made during the marriage
- Specifies a clear valuation date (e.g., date of divorce, date of separation, or another agreed-upon date)

