Depends ... if he takes the distribution from the 401K  in his name then he will pay the taxes on his return.

However ... if this is done pursuant to a QDRO  from the court and the distribution is made out directly to you then you can :

1) keep it and pay the tax on it 

2) roll it to an IRA that you set up for this ( within 60 days ... if you can have the distribution be made directly to the IRA account that would be best) ... and this way you pay no taxes now.

3) keep some of it  & roll some of it