N.M. Admin. Code § 11.3.300.327

Current through Register Vol. 35, No. 20, October 22, 2024

Section 11.3.300.327 - DEPENDENTS' ALLOWANCE

A. A claimant is eligible to receive benefits in the amount of $25 for each unemancipated child, up to a maximum of two children, and not to exceed fifty percent of the claimant's weekly benefit amount.

B. The claimant shall declare the dependents' allowance on the date that the claimant files an initial claim for the benefit year.

C. Within 14 days of an application for the dependents' allowance, the claimant must supply verification that, for each child for whom the allowance is claimed, the child is the claimant's child, under the age of 18, unemancipated and the child is:

(1) in fact dependent on and wholly or mainly supported by the claimant; or

(2) in the legal custody of the claimant pending adjudication of a petition for adoption filed in a court of competent jurisdiction; or

(3) the subject of a decree or order from a court of competent jurisdiction requiring the claimant to contribute to the dependent's support; and no other claimant is receiving dependents' allowance benefits for that child under the Unemployment Compensation Law.

D. Definitions: "Child" means a person:

(1) who is related to the claimant within the third degree of consanguinity; or

(2) who is a stepchild of the claimant by virtue of the claimant's marriage to the child's biological or legal parent and that biological or legal parent has sole or primary legal and physical custody of the child and the child physically resides with the claimant; or

(3) who is in the claimant's legal or physical custody pursuant to a decree or order from a court of competent jurisdiction including but not limited to orders of custody, guardianship, conservatorship, trusteeship or foster care;

(4) "wholly or mainly supporting" means that the claimant who is applying for the dependents' allowance is in fact furnishing contemporaneously more than fifty percent of the actual cost of support for the dependent.

E. The claimant has the burden of establishing to the satisfaction of the department that the claimant is actually furnishing more than one-half of the cost of support of the child.

F. No fixed dollar amount shall be used to make the determination regarding support.

(1) The department considers "cost of support" to include but is not limited to a reasonable proration of the expenses of shelter (including but not limited to household grocery, toiletries, household cleaning products, rent or mortgage payments, customary utilities such as water, sewer, gas, electricity and basic telephone), school expenses of the child (including but not limited to tuition, books, clothing and supplies for special school or educational activities), medical and dental expenses including actual payments and payments of insurance premiums; payment of expenses related to any special needs of the child.

(2) The department may also use any child support worksheets utilized by a court of competent jurisdiction in determining the amount of child support due from each parent.

G. Verification:

(1) Claimant shall not be eligible to claim a dependents' allowance for any person unless the dependent has been issued a social security number or other federal identification sufficient for purposes of verification.

(2) A claimant who is otherwise eligible for benefits and who has not yet submitted the required dependents' allowance verification shall not be paid the dependents' allowance unless and until verification satisfactory to the department is presented.

(3) Upon receipt of verification within 14 days of the application the dependents' allowance shall be paid retroactively to the date of the application.

(4) If the claimant submits verification after 14 days, the claimant will not be eligible to receive benefits retroactively to the date of the application but will be eligible to receive benefits retroactively to the date of submission of verification satisfactory to the department.

H. Changes in eligibility:

(1) During the life of the claim, should claimant become eligible for a dependents' allowance, claimant may request from the department that the dependents' allowance be granted. Claimant will be required to provide proof that the dependent for which the benefit is being sought was not a dependent at the time of the filing of the initial claim. The department will issue a written determination whether claimant is granted or denied the dependents' allowance.

(2) During the life of the claim, should claimant no longer be eligible to claim a dependents' benefit for one or more of the dependents for whom claimant is receiving the dependents' allowance, claimant is required to report to the department within five days any such change in circumstances. A claimant who fails to report such change in circumstances may be assessed an overpayment.

(3) Should the circumstances of who provides support for the dependent change during the life of the claim, the claimant shall inform the department within five days of the change of circumstances.

I. Multiple claims: Only one claimant may receive a dependents' allowance for any specific dependent. In the event two claimants each request to receive the dependents' allowance for the same child, upon notification of the dispute, the department shall continue making payments to the claimant who the department initially determined was eligible to receive benefits for the dependent. A later claimant may demonstrate a superior claim to the dependents' allowance for a child by producing documentation showing that the later claimant has a paramount right to claim the dependents' allowance, including but not limited to:

(1) a custody decree or order from a court of competent jurisdiction finding that the dependent child is or should be in the primary physical custody of the later claimant or that the later claimant is obligated to provide more than fifty percent of the dependent child's support and that the later claimant is in fact the primary physical custodian of the dependent child or is in fact providing more than fifty percent of the dependent child's support;

(2) a custody decree or order from a court of competent jurisdiction or similar document including, but not limited to IRS form 8332, finding that the later claimant is eligible to claim the child as a dependent for official purposes.

J. Once a claimant has been determined to be eligible for the dependents' allowance that determination will remain in effect for the life of the claim, subject to the provisions of Subsection H of 11.3.300.327 NMAC.

K. Payment of regular benefits will not be delayed due to any delay in processing the application for dependents' allowance.

L. A contributing employer's account will not be charged any portion of benefits paid for the dependents' allowance.

N.M. Admin. Code § 11.3.300.327

11.3.300.327 NMAC - N, 7-1-2003; A, 11-15-2012, Adopted by New Mexico Register, Volume XXIX, Issue 20, October 30, 2018, eff. 11/1/2018