1. Employee and Employer Contributions
In most divorce-related QDROs, the alternate payee (the non-employee spouse) is entitled to a portion of the total account balance as of a specific date—often the date of separation or divorce. But in a 401(k) plan, this includes:
- Employee deferrals —the amounts contributed directly from the employee’s paycheck
- Employer matching and additional contributions —these may be subject to vesting schedules
It’s critical for your QDRO to specify whether unvested employer contributions should be included. In many plans, only the vested balance is divisible at the time of the order.

