Employee and Employer Contributions
Most 401(k) accounts include both employee contributions (what was deferred from wages) and employer contributions (matching or profit sharing). The QDRO must state how each portion should be handled. For example:
- Is the distribution a fixed amount or a percentage as of a specific date?
- Does it include market gains and losses from the date of division to the date of distribution?
- Will employer contributions that are still subject to vesting be divided, and how?
Employer contributions often come with a vesting schedule. If the participant isn’t fully vested at the time of divorce, part of the employer portion may not be available for division. We always recommend requesting a vesting statement and confirming the plan’s forfeiture rules.

