1. Dividing Employee vs. Employer Contributions
401(k) plans typically include both employee and employer contributions. Only the portion earned during the marriage is generally subject to division. The QDRO must specifically state whether it includes:
- Just the employee’s contributions (and associated earnings)
- Employer contributions that were made and vested during the marriage
It’s important to request a breakdown from the plan administrator. We frequently see cases where clients assume they’re entitled to the full account balance without realizing parts are non-marital or unvested employer contributions.

