ALBANY, N.Y., Nov 3 (Reuters) - The New York City Bar Association on Thursday recommended that a recently-enacted formula to calculate temporary spousal maintenance -- the amount of money one spouse pays another during a divorce proceeding -- be applied more broadly in the New York state courts, a move the association said would benefit low-income residents.

Under a year-old law, state Supreme Court judges use a mathematical formula based on the spouses' income to calculate temporary maintenance, which is granted to financially-strapped spouses pending the outcome of court proceedings. In the past, the statute based temporary maintenance on the needs of the spouse with the lower income.

The bar association's report recommends that the new maintenance formula, which currently only applies in Supreme Court, also be used in Family Court, which is authorized to award "spousal support" to estranged spouses who have not divorced. Since litigants in Family Court tend to be low-income and pro se, according to the report, they cannot demonstrate to a judge the need for support.

"As a result of this ambiguous statutory guidance, many Family Court litigants do not obtain spousal support since they cannot afford counsel who can demonstrate that spousal support is warranted," the report says.

The new formula does not apply to permanent maintenance, which courts typically grant near the end of divorce proceedings. The level of permanent maintenance is left to the judge's discretion, and is based on a spouse's cost of living as well as medical, educational and other expenses.

The association's recommendations were submitted to the state Law Revision Commission, which has been tasked by lawmakers with reviewing the 2010 law that created the new maintenance formula.

The formula was passed as part of a package of bills aimed at overhauling the way divorce proceedings are treated by courts. These included the creation of no-fault divorce and a law that enables the less-monied spouse to collect attorneys' fees in most cases.

In addition to recommending that the guidelines for temporary maintenance in matrimonial cases also apply to support awards in family court, the bar association wants the commission to conduct a thorough review of the practice of classifying degrees, licenses and certifications -- known collectively as "enhanced earning capacity" or EEC -- as a financial asset for the purposes of calculating permanent maintenance.

Critics of the practice, including the association, contend that the use of EEC in maintenance calculations is unfair because it treats future earnings as both income and assets, allowing courts to "double-dip" when deciding maintenance levels. They also argue that calculating the ability to earn is more art than science.

Calculating EEC "requires assumptions on assumptions. As we have seen in recent years of economic upheaval, these assumptions often do not pan out," the report reads.

'PEOPLE WANT CONSISTENCY'

Rose Mary Bailly, the head of the Law Revision Commission, declined to comment on the report, but did indicate the commission was looking at all of the bar association's concerns.

"People want both consistency in maintenance awards among similarly-situated parties, and predictability so attorneys can point to past decisions as a path (for current clients)," Bailly said.

A number of local bar associations and non-profit groups -- mainly those that advocate for victims of domestic violence -- have sent their own recommendations to the Review Commission over the last year. In Nov. 2010, the New York State Bar Association suggested the legislature abolish the use of enhanced earning capacity in calculating maintenance awards and do away with the formula for temporary awards, allowing courts to make awards on a case-by-case basis.

The state bar assocation also proposed that the formula for permanent maintenance apply only to couples with a combined annual income below $130,000, since wealthier couples tend to have more complicated financial issues. The current formula applies to the first $500,000 of income for any divorcing couple.

The Law Revision Commission is set to release its report to the legislature by Dec. 31.

(Reporting by Dan Wiessner)

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(A previous version of this story did not distinguish between the New York City and State bar associations. The $130,000 proposal came from the state bar association.)