1. Dividing Contributions
401(k) accounts typically include both employee and employer contributions. In most divorce cases, the marital portion consists of all contributions and earnings accrued during the marriage, regardless of who funded them. The QDRO must clearly define which portion the alternate payee (non-employee spouse) receives.
- Employee Contributions: Generally 100% vested immediately and fully divisible by a QDRO.
- Employer Contributions: May be subject to a vesting schedule and might not be fully available for division depending on the employee’s years of service at the time of divorce.

