Well, your husband would be wrong and would fail in that argument. It simply does not work the way that he thinks it works. His income was marital property throughout the entire marriage and not his own personal, separate property.In answer to an earlier comment, I just came upon this information yesterday.
My husband will argue that since he earned the money and it is his 401K, that the money is solely his. He will also argue that since I have been working for 8 years, that I should have created my own retirement fund. But at this point, it is the only retirement fund we have (and it's a significant savings - 300K+, much more than I would have been able to accrue at my income).