Employee and Employer Contributions
A typical 401(k) includes both employee deferrals and potentially matching or profit-sharing contributions from the employer. The QDRO must clarify what part of the account the alternate payee (often the ex-spouse) is entitled to. Most importantly, only vested employer contributions can be divided unless specified otherwise in the divorce decree.
In cases where unvested funds exist at the time of divorce, it’s important to determine whether the division should include future vesting. Some QDROs include language that “tracks” unvested portions in case they vest later. This must be clearly spelled out.

