in texas , how long do you have to be married to get 1/2 of the 401k but had 401k before I got married ..married 4 1/2 years ?

Your husband is correct. Property you own at the time of divorce is assumed to be community property and is divisible in the divorce.  This is true whether the marriage is six months or 30 years.   A portion of your 401(k) is your separate property to the extent it was earned prior to your marriage. The court cannot take that portion from you or divide it with husband.  It is your burden, however, to prove how much you had in your 401(k) at the time of your marriage.  Request a statement from the month of marriage from the administrator of your 401(k).  The value of the 401(k) at the time of the marriage then is subtracted from the value at (close to) date of divorce.  The result is the community, divisible portion of the 401(k).   So for example, if you had $25,000 in your 401(k) at the time of marriage, and now it is worth $100,000, $75,000 of the account is divisble in the divorce.  So you and your hsuband would be dividing the $75,000.00.  Of course, if Husband has a retirement account then you are entiteld to the community property portion of his retirement account.