I think your husband needs to see an accountant.
If he is required to give you cash as part of the divorce settlement, that's not taxable income to you.
If he was going to be ordered to share his 401(k) with you, what should have happened is he should have gotten a qualified domestic relations order (QDRO) from the court, ordering the 401(k) trustee to split the account. Then, you would be owner of a 401(k) in your own name. You could keep it until you retired, or roll it over to an IRA or your own workplace retirement plan, or cash it out. If you cashed out the 401(k), you would pay regular income tax but no penalty, since the account was transferred to you under a QDRO. If you rolled it over to an IRA and then cashed it out, you would owe regular Income tax AND the 10% penalty, because there is no exception for an IRA under a QDRO. If you held the assets until retirement, you would pay regular income tax.
But, if he really did cash out while it was under his own name, then he owes all the tax and penalties. Any cash he gives you afterwards is not taxable to you.
(Note that if he did this less than 60 days ago, and gets clued into the mess he made for himself, he can reverse the cash-out and apply for a QDRO to do it right, then you would owe tax as I described. If this was more than 60 days ago, he screwed himself and there's nothing he can do about it.)
