Legal Question in Family Law in California

Your post is a little confusing as it mixes up several different areas of law.

The portion of the 401K that increased during the marriage is what is divided. You use the term vesting, which doesn't make sense with a 401K. The term vesting is used for classification of community interests in pension plans. So if $50,000 was in a 401K investment retirement account at the beginning of the marriage, and it was $100,000 at the end of the marriage, then the community interest is $50,000, and the $50,000 gets split.

A QDRO is an acronym for a Qualified Domestic Relations Order. A QDRO (pronounced "quadro") is a court order that creates the right for an alternate payee (in this case, your ex-spouse) to receive all or part of your plan account. The QDRO must be a judgment, decree or order that is made by the court.

Different 401K's are governed by different plans. How you want your portion of the 401K divided should be discussed with the plan administrator and a competent attorney. For example, the least complicated method is to actually split the 401K into two separate accounts. Others prefer payment of a lump sum. Each choice comes with its own tax complications.

If you are doing this on your own, which I strongly discourage, I advise you to at the least speak to the plan administrator. I have seen many attorney drafted QDRO's get rejected by the plan administrator for vague language and tax problems.