Employee vs. Employer Contributions
QDIROs can divide only the marital portion of the 401(k). Typically:
- Employee contributions earned during the marriage are marital property.
- Employer contributions are only included if they are vested during the marriage.
If the participant remains employed, the QDRO should clearly identify whether post-divorce contributions will be excluded. If not drafted properly, the ex-spouse may end up entitled to future retirement growth, which is usually not the intention.

