1. Employee and Employer Contributions
Typically, 401(k) accounts include both employee-deferral contributions (which are usually fully vested) and employer contributions (which may be subject to a vesting schedule). If the employee spouse isn’t fully vested at the time of divorce, unvested portions may be excluded from division.
When preparing your QDRO, ask these questions:
- Which contributions are vested?
- Will employer contributions continue vesting after the divorce?
- Should the alternate payee receive a share of just the vested portion or potential future vesting as well?
This distinction matters. Your QDRO must be specific about what gets divided and on what date. At PeacockQDROs, we’ve seen many drafts get rejected simply because they failed to define the appropriate cut-off (valuation) date for vested balances.

