What happens if mediation fails and I need to file a partition action to force the sale of our jointly owned land in Wisconsin?

Short answer: If mediation fails you can usually file a partition action in Wisconsin circuit court asking the court to physically divide the property (partition in kind) or, if division is impracticable, to order a sale and divide the proceeds among owners. The court follows procedures under Wisconsin’s partition laws and will consider deeds, liens, appraisals and practicality of dividing the parcel. This article explains the usual steps, likely outcomes, timelines, costs, and how to prepare.

Key Wisconsin law

Partition actions in Wisconsin are governed by Chapter 799 of the Wisconsin Statutes. See the statute index for the partition chapter here: Wis. Stat. ch. 799 (Partition). The chapter explains who must be joined, the court’s powers, and how proceeds are handled. For the basic starting point, see Wis. Stat. § 799.01: https://docs.legis.wisconsin.gov/statutes/statutes/799/01.

Typical sequence after mediation fails

File a complaint for partition — The owner (plaintiff) files a complaint in the Wisconsin circuit court where the land is located. The complaint identifies the property by legal description, states each owner’s interest, and asks the court to divide the property or order a sale.
Name all required parties — You must join every person or entity with a recorded interest (owners, mortgage holders, lien claimants). The court needs all potentially affected parties present so it can bind them by its order.
Service and response — The court issues summonses and parties are served. Other owners can answer, raise defenses, or file counterclaims (for example, asserting an offset for improvements or claiming the property should not be sold).
Pretrial steps — Expect discovery, appraisals, surveys, and possibly a hearing to appoint a commissioner or referee to assist with dividing or selling the land. Local court rules or a judge may require or encourage additional ADR, but a full mediation is not a statutory precondition to filing under ch. 799.
Partition in kind or sale — The court prefers partition in kind (physical division) if it is fair and practical. If dividing the parcel would significantly injure owners’ interests or be impractical, the court may order sale and division of proceeds.
Sale and distribution — If the court orders sale, the court or an appointed commissioner will manage the sale (often a public auction or supervised sale). After sale, proceeds pay liens, taxes, court costs, and then the net is distributed among owners according to their interests.

How the court decides between division and sale

The court evaluates whether a physical division is reasonably practicable and equitable. Factors include:

Shape, size, and zoning of the parcel
Whether dividing would create odd parcels or reduce overall value
Existing improvements (buildings, roads, utilities)
Number of owners and their respective ownership shares
Costs and feasibility of conducting a fair division (surveys, new deeds, easements)

What you should expect to provide and collect

Before or when you file, gather:

Copies of deeds and the legal description
Title report or chain of ownership
Mortgage statements, recorded liens, and tax records
Current surveys, plats, or maps if available
Appraisals or recent comparable sales
Documents showing contributions to improvements, maintenance, or taxes (if you seek credits)

Costs, timing, and risks

Partition cases can take several months to over a year depending on complexity, number of parties, disputes about valuations, and whether the court must supervise a sale. Costs include court filing fees, service costs, survey and appraisal fees, commission or referee fees, and attorney fees.

Typically, each party pays their own attorney fees unless a contract or statute says otherwise or the court orders fee shifting for misconduct. Liens and mortgages will be paid out of sale proceeds or otherwise resolved before net distributions.

Possible outcomes and practical options

Partition in kind: Parcels are physically divided and deeds issued to each owner proportionate to their share.
Partition by sale: Property sold; proceeds divided after paying liens, taxes, and costs.
Buyout settlement: One owner buys the others out for an agreed price (often faster and cheaper than litigation).
Adjustments and credits: The court may account for unequal contributions to improvements, taxes paid, or agreed offsets when distributing proceeds.

Sample hypothetical

Suppose two siblings co-own a 15-acre parcel (50/50). Mediation fails. One sibling files a partition action in the circuit court where the land sits, names the other sibling and a mortgage lender as defendants, and asks for sale because dividing the 15 acres would leave one parcel without road access and lower value. The court orders an appraisal, appoints a commissioner to handle the sale, supervises a public sale, pays off the mortgage and property taxes from proceeds, deducts sale and court costs, and divides the remaining funds 50/50.

How to prepare and increase your chance of a good result

Collect title documents, surveys, and all records of payments or improvements.
Get a current appraisal to establish market value before filing.
Consider a buyout offer or structured settlement to avoid sale costs.
Talk to an attorney experienced in Wisconsin partition cases and real property litigation for strategy and to ensure all parties and lienholders are joined correctly.
Be prepared for potential delays if ownership is complex or if there are multiple lienholders or disputed boundaries.

Where the action is filed

File in the Wisconsin circuit court in the county where the real estate is located. Chapter 799 governs the proceedings. For the statute and more detail, see: Wis. Stat. ch. 799 — Partition.

When to get legal help

If mediation fails and parties cannot agree on a buyout or voluntary sale, consult an attorney experienced in Wisconsin real property litigation. An attorney can help prepare the complaint, identify and serve all necessary parties, arrange appraisals and surveys, and present your position to the court in support of partition in kind or sale.

Disclaimer: This article explains general principles of Wisconsin partition law and is for informational purposes only. It does not constitute legal advice and does not create an attorney-client relationship. For advice about your specific situation, consult a licensed Wisconsin attorney.

Helpful Hints

Try a written buyout offer before filing — it may save time and money.
Gather survey and title information early — missing parties or liens delay a partition sale.
Expect the court to prefer division in kind unless division is clearly impractical.
Appraisals and an inventory of improvements help the court make fair allocations.
Plan for sale costs: auctions, advertising, commissioner fees, and closing costs reduce net proceeds.
If ownership includes trusts, estates, or corporations, identify the authorized representatives to avoid further delays.