Employee vs. Employer Contributions
A 401(k) account typically includes both employee deferrals and company contributions. When drafting a QDRO, you need to be clear about how both types of contributions are divided. Common approaches include:
- A flat percentage of the entire balance as of a specific date
- Only the marital portion, based on dates of marriage and separation
- Separate treatment of vested vs. unvested funds
For example, if the employee contributed $50,000 and the employer added $20,000 during the marriage, the alternate payee may be awarded a 50% share of the total traced to that time period. But if employer contributions are not yet fully vested, those amounts may not be divisible.

