Employee and Employer Contributions
One of the first decisions involves how to divide contributions. With a 401(k), there could be:
- Employee elective deferrals: These are usually 100% vested and can be divided without much issue.
- Employer contributions: These may not be 100% vested, especially if the employee has not worked with the company very long. Any unvested portion may not be available to the alternate payee at the time of division.
Your QDRO should specify whether the alternate payee (such as the former spouse) is entitled to a share of both employee and employer contributions—and at what valuation date.

