Legal Question in Family Law in Texas

If you are reaching an agreement with your spouse then you can do pretty much whatever you want so long as the QDRO language dividing the 401k meets the plan requirements. Drafting a decree that allows you to in turn draft a DRO that can be qualified as a QDRO may be another issue.

Typically vesting does not affect the right of the spouse to collect that share of the 401k. There are ways of undervaluing unvested portions of the account but it is not the law in Texas that unvested benefits must be undervalued in comparison to vested benefits. There is no specific answer to your question. It is up to you, or your lawyer, to advocate the position that best protects your rights.

The contributions and income in the plan prior to marriage are separate property. If the contribution to the plan was made after marriage the community property presumption applies.

To rebut this presumption you need to show when the vested contributions were made

Unless you had unvested matching contributions when you divorced, vesting does not matter. Since you lose unvested matching contributions if you quit, unvested contributions are not your property and can't be separate or community. However vested contributions are your property and can be characterized as separate or community

You should probably have the plan administrator help you with this.

If you don't have a divorce attorney you need to consult one.