1. Employee vs. Employer Contributions
The QDRO must clearly state what part of the 401(k) account is being divided. Typically, the alternate payee is awarded a percentage (often 50%) of the balance earned during the marriage. This includes:
- Employee salary deferrals—these are always 100% vested
- Employer contributions—these may be subject to a vesting schedule, which is critical to identify in your QDRO
If only fully vested funds are to be divided, that must be indicated in the QDRO. Make sure your attorney gets the full account statement and plan summary to determine which contributions are eligible for distribution.

