1. Employee vs. Employer Contributions
Most 401(k) plans have two primary sources of retirement funds—employee deferrals and employer contributions (matches or profit-sharing). A well-drafted QDRO will address each type:
- Employee contributions are usually fully vested and considered marital property if earned during marriage.
- Employer contributions may be partially or fully unvested, depending on the participant’s tenure and the plan’s vesting schedule.
It’s essential to include specific vesting language in the QDRO to ensure that only the vested portion is awarded—or to create a formula that accounts for later vesting.

