1. Employee vs. Employer Contributions
Most 401(k) plans include both employee deferrals and employer matching or profit-sharing contributions. Often, employer contributions have a vesting schedule. That means a portion of those funds may be unavailable for division if they’re not yet vested.
During the QDRO drafting process, it’s critical to determine:
- Which contributions are marital property and subject to division
- What portion of the employer match or profit-sharing contributions are vested as of the date used for division (commonly the date of separation or divorce)

